Brown v Health Services Union (No 3) - [2012] FCA 1246

FEDERAL COURT OF AUSTRALIA
Brown v Health Services Union (No 3) [2012] FCA 1246

Citation: Brown v Health Services Union (No 3) [2012] FCA 1246

Parties:
CHRISTOPHER PAUL BROWN AND OTHERS NAMED IN THE SCHEDULE v HEALTH SERVICE UNION AND OTHERS NAMED IN THE SCHEDULE

HSUEAST v NSW MINISTER FOR INDUSTRIAL RELATIONS AND OTHERS NAMED IN THE SCHEDULE

File number(s): NSD 621 of 2012
NSD 735 of 2012

Judges: FLICK J

Date of judgment: 7 November 2012

Catchwords: INDUSTRIAL LAW – registered organisations – dysfunctional registered organisation – scheme of administration – fixed time – extension of time for completion – whether extension should be granted – whether specific order required to alter effect of organisation’s rules

Legislation: Fair Work (Registered Organisations) Act 2009 (Cth) s 323

Cases cited: Brown v Health Services Union [2012] FCA 644, 291 ALR 497, referred to
Brown v Health Services Union (No 2) [2012] FCA 1014, referred to

Date of hearing: 7 November 2012

Place: Sydney (via video link to Melbourne)

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 6

Solicitor for the Honourable Michael Francis Moore in his capacity as Administrator of HSUeast and the HSU East Branch: Mr P Punch of Carroll & O’Dea Lawyers

Solicitor for the Commonwealth Minister for Employment and Workplace Relations: Mr V Gostencnik of Corrs Chambers Westgarth

Counsel for the Applicants in NSD 621 of 2012: Mr M Irving

Solicitor for the Applicants in NSD 621 of 2012: Holding Redlich

Counsel for the Health Services Union: Ms M Irving

Solicitor for the Health Services Union: Holding Redlich

Counsel for HSUeast: HSUeast did not appear

Counsel for Michael Williamson: Mr Williamson did not appear

Counsel for Katherine Jackson: Ms Jackson did not appear

Counsel for Peter James Mylan: Mr Mylan did not appear

Counsel for the 5^th – 76^th and 78^th– 87^th Respondents in NSD 621 of 2012: These Respondents did not appear

Counsel for the New South Wales Minister for Industrial Relations: Mr M Easton

Solicitor for the New South Wales Minister for Industrial Relations: Crown Solicitor for the State of New South Wales

Counsel for Unions NSW: Unions NSW did not appear

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 621 of 2012

BETWEEN:
CHRISTOPHER PAUL BROWN AND OTHERS NAMED IN THE SCHEDULE
Applicant

AND:
HEALTH SERVICE UNION AND OTHERS NAMED IN THE SCHEDULE
Respondent

JUDGE:

FLICK J

DATE OF ORDER:

7 NOVEMBER 2012

WHERE MADE:

SYDNEY (VIA VIDEO LINK TO MELBOURNE)

THE COURT ORDERS THAT:
1.The time for compliance with paragraph 18 of the Scheme of Administration approved on 21 June 2012 (as varied) is extended to 23 November 2012.
2.The Administrator is to file and serve all such Affidavits and an Outline of Submissions upon which he wishes to rely in support of any application to vary the Scheme of Administration in respect to the NSW Branch and the Victoria No 3 Branch of the Health Services Union…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FCA 1246
Decision Date: 7 November 2012

CaseChat Overview and Summary

Brown and the Health Services Union were the parties involved in the case before the Federal Court of Australia. The primary dispute centered on the administration of a registered organisation under industrial law. The Health Services Union sought an extension of time for compliance with a scheme of administration, and whether any specific orders were required to alter the effects of the organisation’s rules. The court was tasked with determining the validity of the extension request and if the Union's rules could be amended through specific orders.

The court examined whether the extension of the compliance period was justifiable and if the rules of the Union could be altered by specific orders. The key issue was whether the Health Services Union's internal rules could be modified to accommodate the extension request. The court needed to balance the administrative requirements with the procedural integrity of the union’s governance.

The Federal Court held that the extension for compliance with the scheme of administration was warranted due to the unique circumstances of the union's dysfunction. The court granted the extension, setting the new deadline to 23 November 2012. Additionally, the court determined that specific orders could be issued to alter the union's rules if necessary to facilitate the administration process. The court scheduled the hearing for any variations to the scheme of administration, ensuring all parties had the opportunity to present their submissions.

The final orders mandated the extension of the compliance period, required the Administrator to file necessary documents by a specific date, and scheduled a hearing for any proposed changes to the scheme of administration. The court's decision aimed to balance the administrative needs with the procedural rights of the union, providing a structured pathway for future compliance and governance adjustments.

Orders

Orders of the court

1. The time for compliance with paragraph 18 of the Scheme of Administration approved on 21 June 2012 (as varied) is extended to 23 November 2012.

2. The Administrator is to file and serve all such Affidavits and an Outline of Submissions upon which he wishes to rely in support of any application to vary the Scheme of Administration in respect to the NSW Branch and the Victoria No 3 Branch of the Health Services Union on or before 14 November 2012.

3. Any such further Affidavits or Outlines of Submissions upon which any interested party wishes to rely is to be filed and served on or before midday on 20 November 2012.

4. The proceeding in respect to any variation of the Scheme of Administration in respect to the NSW Branch and the Victoria No 3 Branch is fixed for hearing at 9.30am on Thursday 22 November 2012.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Brown v Health Services Union (No 3) [2012] FCA 1246
Parties:		CHRISTOPHER PAUL BROWN AND OTHERS NAMED IN THE SCHEDULE v HEALTH SERVICE UNION AND OTHERS NAMED IN THE SCHEDULE HSUEAST v NSW MINISTER FOR INDUSTRIAL RELATIONS AND OTHERS NAMED IN THE SCHEDULE
File number(s):		NSD 621 of 2012 NSD 735 of 2012
Judges:		FLICK J
Date of judgment:		7 November 2012
Catchwords:		INDUSTRIAL LAW – registered organisations – dysfunctional registered organisation – scheme of administration – fixed time – extension of time for completion – whether extension should be granted – whether specific order required to alter effect of organisation’s rules
Legislation:		Fair Work (Registered Organisations) Act 2009 (Cth) s 323
Cases cited:		Brown v Health Services Union [2012] FCA 644, 291 ALR 497, referred to Brown v Health Services Union (No 2) [2012] FCA 1014, referred to
Date of hearing:	7 November 2012
Place:	Sydney (via video link to Melbourne)
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	6
Solicitor for the Honourable Michael Francis Moore in his capacity as Administrator of HSUeast and the HSU East Branch:	Mr P Punch of Carroll & O’Dea Lawyers
Solicitor for the Commonwealth Minister for Employment and Workplace Relations:	Mr V Gostencnik of Corrs Chambers Westgarth
Counsel for the Applicants in NSD 621 of 2012:	Mr M Irving
Solicitor for the Applicants in NSD 621 of 2012:	Holding Redlich
Counsel for the Health Services Union:	Ms M Irving
Solicitor for the Health Services Union:	Holding Redlich
Counsel for HSUeast:	HSUeast did not appear
Counsel for Michael Williamson:	Mr Williamson did not appear
Counsel for Katherine Jackson:	Ms Jackson did not appear
Counsel for Peter James Mylan:	Mr Mylan did not appear
Counsel for the 5^th – 76^th and 78^th– 87^th Respondents in NSD 621 of 2012:	These Respondents did not appear
Counsel for the New South Wales Minister for Industrial Relations:	Mr M Easton
Solicitor for the New South Wales Minister for Industrial Relations:	Crown Solicitor for the State of New South Wales
Counsel for Unions NSW:	Unions NSW did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION	NSD 621 of 2012

BETWEEN:	CHRISTOPHER PAUL BROWN AND OTHERS NAMED IN THE SCHEDULE Applicant
AND:	HEALTH SERVICE UNION AND OTHERS NAMED IN THE SCHEDULE Respondent

JUDGE:	FLICK J
DATE OF ORDER:	7 NOVEMBER 2012
WHERE MADE:	SYDNEY (VIA VIDEO LINK TO MELBOURNE)